The issue of intervention in the domestic affairs of independent countries by other independent nation(s) is one of the biggest challenges bedeviling international law at the moment. This is so because the need for the respect of human rights has been emphasized in recent years while, on the other hand, international law has firmly held the idea of sovereignty and its prime feature, the policy of non-interference in high regard. Indeed, sovereignty has been regarded as the foundation of modern international relations. However, the doctrine of unilateral humanitarian interventions gives state(s) powers to get involved in a countries’ affairs if there are cases of massive violation of human rights. These violations can be in the form of genocide or mass killings. In this manner, the doctrine of humanitarian intervention can be seen to be an affront to the principle of “non-interference” and as a result its validity has been questioned in recent times. The purpose of this paper is therefore to examine the legality of unilateral humanitarian intervention.
The principle of unilateral humanitarian intervention has been debated for several centuries. However, its legality in international relations has been controversial since it violates the basic norms of international relations, namely the principle of state sovereignty. For several decades, state sovereignty has been the core of interstate relations as well as a foundation of world order and it is rooted in both customary law and the United Nations (UN) Charter. Therefore, state sovereignty is one of the most important doctrines in international law and it plays a critical role in maintaining peace and order in the world.
Several authors and scholars have argued that the doctrine of non-interference is perhaps the single most nature of state sovereignty. Non-interference policy condemns all manner of interference in the domestic affairs of a sovereign country. The doctrine holds that each independent state ought to freely determine its own socio-economic policies as well as the culture to be embraced. In short, sovereignty means competence and equal treatment of all countries.
Unilateral humanitarian intervention is fundamental in international law, and its prominence has grown significantly in the last twenty years. The term refers to the military intervention by one or more countries in the domestic affairs of another country, without its permission, in order to prevent gross violation of human rights. Unilateral humanitarian intervention is, therefore, a violation of the sovereignty of a state by another. This mean, the doctrine is in direct conflict with one of the basic tenets of international law and, therefore, a distinct legal justification is required so as to necessitate its continued usage. Morally, it sounds good, but legally, it is not justified.
In modern times, the legality of this principle has been controversial in international law. Many scholars as well as governments are unanimous in their argument that the United Nations (UN Charter), which controls the use of force in international relations, disallows the use of unilateral use of force, including humanitarian intervention. On the other hand, several scholars have questioned this kind of thinking, arguing that unilateral humanitarian intervention is legal.
This paper, therefore, assesses the legality of unilateral humanitarian intervention in international law. Specifically, its legality will be examined from two perspectives; from the UN Charter and the Customary International Law, because these two are the foundations of international law.
Sovereignty and Humanitarian Intervention
For the past hundreds of years, state sovereignty has been the guiding doctrine for interstate relations as well as a foundation for world order.1 State sovereignty is one of the basic principles of international law, under both the customary international law and the UN Charter, and it plays a significant part in ensuring world peace and order in addition to the defense of weak nations against the strong.2
State sovereignty means competence, independence, and the legal equality among countries. 3 The doctrine of state sovereignty involves all cases in which a state is allowed by international law to choose and act without recourse to other independent countries. 4 Some of the cases include the kind of political mechanism to be used by the state in addition to the socio-economic and cultural systems.5 Each state has its own option to choose among these systems.
State sovereignty has been in existence for many years. Many scholars argue that, the present foundations of international law relating to sovereignty were as a result of the treaties of Westphalia in 1648. 6 The superiority of the governing authority was recognized within a structure of sovereign and equal states as a way to prevent another war after three decades of war and, therefore, bring about peace in Europe.7
State sovereignty has since time immemorial been a major defining principle as regards to interstate relations and has always been a foundation for world order for the past years. It is a vital principle under the UN Charter and customary international order and it play a vital role in maintaining peace and security and defending the weak nations against the strong ones. State sovereignty therefore refers to the competence of a state, its independence and the legal equality of all the nations. The concept involves all matters that each nation is allowed by international law to act and decide without any recourse to other sovereign countries.
Some of the matters entailed in state sovereignty include the political, economic cultural and social systems that have to be employed by the states. Every state is free to choose the system it prefers. However, for any entity to qualify for sovereignty, then it must first of all qualify to be a state. Elements of statehood include having a functioning government, a permanent population and a defined territory. The UN Charter prohibited the interference in the domestic affairs of sovereign nations by other sovereign nations by use of force or threats. Matters within the domestic jurisdiction of any nations were not therefore to be interfered by the global body or UN.
The International Court of Justice (ICJ) also respected the principle of non-interference of any nation in its domestic affairs and that is the reason it noted in 19409 that respect for territorial sovereignty was a vital foundation for international relations among the independent states. Even though the role of state sovereignty is crucial in international relations, its importance has always been put in dispute before and even now. Controversies have currently emerged from the increase in the status of the humanitarian intervention principle which at times has been inconsistent with the set traditional cultures of sovereignty. It has been referred to by Steinberger in the Public International Law Encyclopedia as being the most controversial and glittering notion in the doctrine, history and practice of International Law.
Some of the Critics of the unilateral humanitarian intervention Law have sought to banish it from the vocabulary and even termed it to have an emotive quality that lacks a specific meaningful content. The concept of sovereignty has however been facing some challenges in international relations especially during the last quarter of the 20th Century.
Unilateral humanitarian intervention has been given various definitions by different scholars. Intervention has been described by some writers to mean dictatorial interference by a nation in the internal issues of another state or between its relations with other states. Intervention however refers to prohibited intervention customarily when referring to international law. The degree of coercion that is applied so as to influence other states can be used to distinguish between the three basic forms of intervention.
In the first meaning, intervention implies examination, discussion and the subsequent recommendatory action. In the second place, intervention means taking measures which are aimed at coercing but which fall short of the use of force and finally intervention refers to the use of force in the domestic affairs of another nation or state. The use of justifiable force for the reason of protecting the inhabitants of a nation from persistent and arbitrary or abusive treatment and which exceeds the standards within which any sovereign state is supposed to act with reasons or justice is referred to as humanitarian intervention.
Humanitarian intervention has also been described as a theory of intervention which bases on humanity and which recognizes the right of a particular state to exercise its international control through the use of military force over the offenses of another in relation to its sovereignty when issues are contrary to the laws of humanity. Even though the definitions may not be all that identical they may all convey details regarding the doctrine of humanitarian interventions. The use of armed force is a common characteristic in all of the definitions and therefore humanitarian intervention entails the legitimate use of military power in the internal running of affairs of a nation by another group of states or even a single state. The use of humanitarian intervention that has to be justified by the use of force is normally dependant on the violations of the human rights in the state in question.
According to Teson, a Scholar, the customary implication of prohibited intervention means the dictatorial interference in the internal affairs of another nation with the aim of maintaining or altering the actual order of issues in the country in a way that is essentially within the limits of the target state. For any intervention to be prohibited the means used must therefore be coercive and its objective must be to be able to influence the decisions or conduct of another state in a manner which is within the state’s jurisdiction.
The main purposes of using humanitarian intervention in a state are to curtail the massive violations of human rights in the specific state like in the case of Tanzania’s 1979 intervention in Uganda and to maintain regional and global stability of states like in the case of India’s intervention in Bangladesh (formerly East Bengal) because of the massive inflow of refugees to India because of the atrocities committed against the people of East Bengal by Pakistan’s army.
Some of the historical developments that arose due to the principle of unilateral human intervention included the Law of nature, the just war theories, for reasons which were aimed at a Jus Ad Bellum for the sovereign countries and the interventions of the 19th and early twentieth centuries which were based on a strict application of the sovereignty of the nation states that were characterized by recognition of conquests and the use of unlimited right to war.
In 1860’s, war was regarded to be an exercise of an international right to action and to which from the nature of the issues and lack of any common superior tribunal, states are forced to have recourse so as to be able to assert and assume their rights. War was however regarded to be the last resort and it was only turned to when peaceful negotiations had totally failed. The invasion of Greece by some Western states in 1827 was an example of interventions which were justified on humanitarian grounds.
Although the doctrine of unilateral humanitarian intervention is currently illegal as regards to the international law, its usage plays a very vital role in the affairs of the world and it should therefore be allowed in situations where there is gross violation and abuse of human rights. Its use should however be laid down in a clear criteria to avoid its abuse. State sovereignty has normally co-existed alongside the unilateral humanitarian intervention principle from the invention of the state system. It is as such arguable that the customary right of unilateral human intervention has been in existence since World War II.
The Treaty Law-UN Charter
The UN charter establishes the international law that governs the use of force. Article 2(4) of the UN charter stipulates that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the objectives of Purposes of the United Nations.” This means that the territorial and political independence of any Sovereign State should be respected. The only exception in the non intervention rule above is in the case of self-defense from an armed attack: Article 51 and by the Security Council where world peace and security is threatened and other methods have proven futile. Article 2(7) compliments 2(4) by prohibiting the UN itself from intervention in domestic matters within the control of a State. However, the problem in the two articles is if a right of humanitarian intercession exists. This comment has led to a heated debate in many conferences and summits. Many law scholars argue that humanitarian intervention is illegal under the charter. Others are of the opinion that the rule of non-intervention gone to the ius cogens status where no derogation is allowed. Minority scholars argue that the promotion of international human rights was the basis of the UN charger and, therefore, legal.
Classicists Good Faith View
The Classical theorists believe that no persuasive ground exists to support the claim that the right of humanitarian intercession exist in the UN Charter. In their support they affirm that there exist only two exceptions to the sovereignty of a state: self defense and authorization of the Security Council. They state that the articles 2(4) and 2(7) plus the General Assembly resolution 2131 denounce the use of force in the international relations. In addition, proponents of the classical theory argue that in the exceptions granted in the charter no word such as humanitarian intervention exists. A classical theorist Gordon argues that if the framers of this charter wanted to use humanitarian intervention as an exception then they should have added the words appropriately and clearly.
The General Assembly Resolution 2625 that deals with the cooperation and relations among states stipulates that “No state or group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of another state.” The 1974 General Assembly resolution was to affirm the inviolability of the non-intervention principle and its dominance in the global relations. They further argue that the charter founders were skeptical and afraid of the unilateral use of force and as such they restricted the right to self defense. Finally, they argue that the intent of the drafters of the Charter was to buttress but not to restrict the ban on force usage in international issues. Therefore, humanitarian intervention is not legal in the charter.
The realists argue that the UN charter was there not to undermine but to lay more emphasis on the rule of humanitarian intervention. In their arguments they purport that the ban on use of force in the article 2(4) is not restrictive in that it forbids use of force only when it is directed towards protection of political independence and territorial integrity
D’Amato argues that the meaning of territorial integrity is not clear to the classicals. Territorial integrity means the prevention of permanent loss of ones territory. As such, humanitarian intervention ‘properly’ will result to loss of no sovereignty. He further explains the ideas of political independence. Political independence means that the independence of a state should not be compromised. From his arguments it is deducible that, humanitarian interventions have no effect on the nations independence hence it does not violate the political independence of a nation.
Teson argues that legitimate humanitarian intervention does not impair the territorial integrity and political subjugation of a State. The realists also hold a view that it is not doubtful that the UN charter seeks to promote human rights. This is as stipulated in the article 1(3) of the Charter: that the UN seeks to attain international cooperation, which is by promoting the respect of all human rights and the fundamental freedoms that govern individuals without discrimination as of race, language, sex, religion etc. Teson states that purposeful reading of the article 2(4) indicates that force can be used to overthrow the regimes that are not respectful of the fundamental rights of individuals.
In conclusion, the realists articulate that if all instances of use of force except those which are expressly stated in the Charter were not legal, then the clauses qualifying the Article 2(4) are rendered redundant. As such, to give meaning to those qualifying clauses, one has to read other parts of the UN Charter. In the preamble, this Charter enlists promotion of rights of individuals as one of its purposes, and then the principle of humanitarian intervention is consistent with it.
Conclusion: Status of Unilateral Humanitarian Intervention under the UN Charter
A purposeful reading of the Article 2(4) does not fully give the legality of the humanitarian intervention in the UN charter. The reading of the preamble also gives no legality to the humanitarian intervention. The Vienna convention on Laws of treaties states that where the common meaning of provisions in treaties is unclear, a supplementary means of interpretation should be sought. These supplementary means includes travaux preparatoires and even the circumstances of the inferences.
The Travaux preparatoires of this Charter doesn’t help in determining the real meaning of the Article 2(4) of this charter. This is due to the fact that there is in adequacy in documentation of the travaux preparatoires content. Some scholars content that the preparatoires is not unanimous on the issue. Other scholars also content that it is of little or no assistance to the interpretation of the Article. Brownie is not clear if the framers of the Article had the intent to maintain customary exceptions on use of force. Lillich on the contrary observed that Brownies premises are not fully supportive of the inference that the final clause in the article does not fully qualify the ban. The assertions of the Classists are more legally persuasive though as a matter of policy, the points put forth by the proponents are more appealing.
Customary International Law
The Customary International Law is one of the foundations of International Law and it is referred to as a practice which is followed in cases where people feel legally obliged to behave in such a manner. The rule of the customary international law can only exist if a practice which is followed by the generality of the nations in their belief that there is a statute that supports such a practice. The difference between the customary law and other practices is derived from state practice and opino juris.
The material element (state practice) is obtained from the behavior and practice of states while the psychological element is derived from the conviction which is held by states or nations in which the behavior in question has been necessitated through a rule of law that is not discretionary.
State practice and its components
State practice is the raw material of customary law and it constitutes what other nations do in relation to other states or nations. State practice therefore entails the process of a continuous demand, interaction and response. It includes behavior of a nation which discloses its conscious attitude in relation to its recognition of a law relating to international law. According to the International Law Commission, the various forms of evidence of Customary International Law are listed as decisions of international and national courts, treaties, diplomatic correspondences, national legislations, practice of international organizations and international courts.
However, the importance of overt national practice during the formation of custom should never be discounted despite acceptance of the indicators of state practice. In the continental shelf case of Libya Versus Malta, emphasis of the ICJ was clear when the court insisted it was axiomatic for the materials of international law to be primarily looked for during the real practice and in the Opinio Juris of nations regardless of the multilateral conventions which may play vital roles in the definition and subsequent recording of rules which are derived from custom or when they are being developed. In this case therefore, the determination of state practice can be obtained from the length or extent of a specific practice and the duration of the practice itself.
Extent of practice
The extent of practice when determining state practice is vital for the initial formation and subsequent maintenance of a customary rule in which there is existence of a general state practice. In the Asylum Case, the ICJ clearly upheld that the state practice can only amount to law if it was in accordance with its uniform and constant use and should be practiced by the states in question. It also insisted on the vitality of an extensive practice by generality of the countries. For instance, the Fisheries case between UK and Norway put the issue of the ten-mile rule in the spotlight. However, the ICJ stated that the ten-mile rule had not acquired the general rule of law authority even though the rule had already been adopted by some countries in their treaties, conventions and national laws. This was because some other states had adopted a different limit.
The insight that were given into the extent of practice that was needed to form a rule of international customary Law was given by the ICJ in the cases of the North Sea continental shelf. In which it stated that the state practice which entailed that of other states whose interests were mainly affected ought to have been virtually and extensively uniform. The extent of the practice which was needed in order to form rules of international customary law can be given in the ICJ’s judgment of the Asylum Case in which it states that any party which heavily relied on a custom must be in position to prove that the custom was established in such a way that it had become binding to the other party involved and in any case the rule was invoked, it was supposed to be in accordance with the uniform and constant usage of practice by the states which were involved and that the subsequent usage of the custom was the expression of the right which were concerned to the state which granted asylum and duty which was owed to the territorial state.
The international custom according to Article 38 of the Statute of the ICJ is referred to as being evidence of a generally practiced and accepted law. Political expediency has been has been played out in numerous cases and as a result, it may not be possible to totally discern in all of the uniform and constant usage to be accepted as law. In this case, there should always be an extensive practice by the generality of the nations or states in question for any existence of a rule of any customary law to take place. There is no rule that can be accepted or termed to be a rule of customary law if it fails to meet the set criterion of extensive practice. Although it is not a must or vital for the customary law to be in universal practice, the practice in question should always be representative of at least the major socio-economic and political systems in the states in question.
On the other hand, only one single act may lead to the formation of a rule of customary law in the case of where the act is accompanied with mass support for the action in question. However, there are rare circumstances whereby an act can lead to the establishment or formation of any customary rule. This is because legal international rules cannot be easily altered or changed. A legal regime cannot be eliminated by one act which is deemed not to conform to the rules unless the act is given overwhelming support for it to be changed.
There is no specific time frame needed for emergence of any rule of customary law. Provided that the generality and consistency of the practice has been formed, then there is no need of a designated time frame, duration or period. The establishment of a rule of customary law cannot be barred by the passage of only a short period of time. In essence, the passage of short period of time cannot be a factor in itself towards the establishment a new rule regarding the customary law. The only requirement therefore is that the customary law should have been virtually uniform and extensively have been used and occurred in a manner to show that there was general recognition that legal obligation or rule of law was involved and put into consideration. In this regard, the period or length of time which is needed in order to establish a rule of international law will highly depend on other factors which are pertinent to the alleged rule of the international law.
Opinio Juris refers to the psychological elements which draws the difference between behavior and conduct in which the states in question undertake due to the feeling that that there is a rule of law which need it and behavior or conduct that may be undertaken by the nations out of political courtesy, expediency or other factors. The courts in some instances are willing to take into consideration the existence of an opinio juris based on the availability of the state practice or other international tribunals, previous court determinations or on a consensus in literature. The major challenge of the use of opinio juris is one of proof since it is hard to ascertain the time of transformation so as to make a practice regarding a rule of law.
There cannot be rules of customary international law if state practice and the opinio juris have not been formed and exited simultaneously. State practice was practiced in the cold warperiod. There was enmity and distrust between the Sino-Soviet countries and the Western Countries. The two sides gave their support to differing sides of a conflict in total defiance of each other. The Security Council was rendered ineffective and could not exercise its rights whenever there was a humanitarian crisis.
Interventions During the Cold War, 1945-1989
Most of the interventions which happened during the cold war were ideological. One of the interventions which had nothing to do with the superpowers but were regarded to be humanitarian was the case of India (Bangladesh) in East Bengal. After British’s withdrawal from India, two nations (India and Pakistan) came into existence. The two nations were only united by religion. The East Pakistan demanded autonomy which was not granted after the elections held in 1990. This resulted into West Pakistan attacking East Pakistan leading to numerous causalities. India attacked and defeated West Pakistan and it justified the intervention on humanitarian grounds. The intervention was later changed to self defense and people argued that India’s intervention was not a legal incidence of humanitarian intervention. India’s intervention was more selfish than humanitarian since the splitting up of Pakistan was meant for India’s own security. India’s action was heavily criticized by the 104 nations and the UN demanded India to withdraw its troops from East Pakistan. It must be noted that the act was illegal but it may mark the start of a new rule of customary international law. India changed their justification from humanitarian to self defense because they believed that human intervention was not legal.
The Tanzanian case in Uganda in 1979 is another case of unwarranted human intervention. Idi Amin’s regimes committed massive atrocities against its own people from 1971 to 1979. The skirmishes created hostilities between Uganda and its neighboring Tanzania. Ugandan troops forcefully tried to annex part of Tanzania, but they were met with massive repulsion from Tanzania who toppled Idi Amin’s government in 1979 bringing to an end the atrocities the Ugandan people were suffering from.
It was however argued that the primary motive for Tanzania’s intervention in Uganda was self interest even though Tanzania had justified it to be in self defense against Uganda’s aggression. Though some claimed that the intervention by Tanzania violated International Law, the country was not seriously reprimanded. It was therefore tantamount to say that the international community recognized the primacy of human dignity of the people over the sovereignty.
Another intervention after the cold war was the case of ECOWAS in Liberia in 1990. The National Patriotic Front of Liberia which was headed by Charles Taylor invaded the country and overthrew the regime of Samuel Doe which it accused of abuse of human rights in the previous years. Most of the country was controlled by NPFL forces while Doe took control of Monrovia. Civil war ensued and chaos was added with the separation of faction from both parties. An estimated 1.3 million people fled the country or were internally displaced. The ECOWAS standing committee however justified the intervention on ground that the there was a breakdown of law and order in Liberia.
ECOWAS intervened in August 1990 but was attacked by the NPFl and other factions that did not want foreign intervention. ECOWAS after a while managed to restore peace, stability and security in Liberia. The intervention by ECOWAS can be regarded to be a multilateral intervention which was motivated reasons. Even though the Security Council did not authorize the intervention, it positively commended ECOWAS for its efforts in bringing Sanity in Liberia.
In most circumstances, the party which claims the existence of any custom is normally the one which is requested to prove its existence to prove to the other party and convince it to be bound by that rule. The role played by the opinio juris in the customary law process was brought to the fore by ICJ. A critical analysis of the various cases of the unilateral humanitarian interventions as discussed above are clear indicators that the doctrine has become more acceptable to majority of the states. Apart from the invasion of Iraq by the US, France and the UK which received little support and recognition from the community of states because it lacked a rule of the customary international law, some other subsequent incidences gained some support from the international community and most from the United Nations (UN).
The concept of unilateral humanitarian intervention is significant in modern era. It is immoral to allow people to suffer under the guise of legal assumptions and theories. However, the rules of international law currently do not allow unilateral humanitarian intervention. Although the doctrine of unilateral humanitarian intervention is essential, it can be misused if a proper measure is not put in place to control its application. Despite its ability to be misused, it is a good concept in the in safeguarding human rights and maintaining world peace. Therefore, a proper criterion must be put in place to monitor its use.
The UN is the only well-place body that can draft the much needed guideline to regulate this doctrine. The provisions of the UN Charter must be modified to allow humanitarian interventions in cases where stipulated circumstances are met and, therefore, the UN must devise a criterion to be met before any humanitarian interventions are undertaken. This might not be an easy thing to get consensus on as some countries would prefer ‘absolute sovereignty’. However, this problem can
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